Who decides our "rights"?
By Robert S. Sargent Jr.
web posted September 16, 2002
The rejection of Judge Priscilla Owens to the 5th Circuit Appeals
Court makes Roger Pilon's Cato Institute's Policy Analysis:
"How Constitutional Corruption Has Led to Ideological Litmus
Tests for Judicial Nominees" (August 6, 2002) especially timely.
This has become a huge problem and Mr. Pilon offers a solution.
Once conservatives understand the Constitution "...both its limits
on power, through enumeration, and its limits on the exercise of
power, through both enumerated and unenumerated rights," then
conservative judicial nominees can "...defend our first
principles...(and seize) the moral high ground...(and) once
judicial nominees are able to show the Schumers of the world
that they take both individual liberty and majoritarian tyranny
seriously, they will be in a good position to turn the tables...(on
those most responsible for corrupting the Constitution)."
Today's conservatives, Mr. Pilon argues, do not have a proper
understanding of the fundamental principles that were understood
by the Framers and Founders of the Constitution. "Those are our
natural rights, the rights we had against each other, prior to the
creation of government..." He writes: "They are not terribly
difficult principles. Justice Bushrod Washington, stated them
simply in 1823 in Coryfield v. Coryell, considered at the time to
be the authoritative interpretation of Article IV's Privileges and
Immunities Clause. Contending that it would be 'more tedious
than difficult' to enumerate the rights protected by the clause,
Washington offered illustrative categories, such as 'protection by
the government; the enjoyment of life and liberty, with the right to
acquire and possess property of every kind, and to pursue and
obtain happiness'"
The drafters of the Fourteenth Amendment also understood this.
"They understood that we are born with our rights, we do not get
them from government." To protect these rights they wrote into
the Amendment a Privileges and Immunities Clause that applied
to the states "which was meant to be the font of rights against the
states."
"Without a sure grasp of the subject, (conservatives) simply flail
at the judicial lawmaking that discovers (Constitutional) rights,
whether correctly or not, thinking it perfectly proper if the same
rights are created by legislatures." By illustration, he cites Justice
Scalia's dissent in Troxel v. Granville (2000). "In Troxel, the
grandparent visitation case out of Washington State, the Court
found an unenumerated right of fit parents to direct the
upbringing of their children, a right that trumped the state law at
issue which had authorized state judges to grant visitation rights
to grandparents and others, over the objections of the parents. In
dissent, Scalia said that although the parental right was
among...the unenumerated rights retained pursuant to the Ninth
Amendment, 'the Constitution's refusal to "deny or disparage"
(such) rights is far removed from affirming any of them, and even
farther removed from authorizing judges to identify what they
might be, and to enforce the judge's list against laws duly enacted
by the people.'" "There in a nutshell," Mr. Pilon writes, "is the
judicial deference that has robbed the Constitution of its rich
natural rights heritage...the two great fonts of rights -- property,
broadly understood, and contract."
He takes conservatives to task for ignoring these unenumerated
rights and "...limit constitutional rights to those fairly clearly 'in'
the document...Thus for conservatives, if a right (is) not clearly
'in' the Constitution, it (does) not exist. What conservatives of
the judicial restraint school have to come to grips with, then, is
the full richness of the Constitution, including its natural rights
foundations...for as the Ninth and Fourteenth Amendments
make clear, the rights 'in' the Constitution are not limited to
those the document plainly enumerates..."
In my opinion, the analysis is wrong.
Let's start with the Ninth Amendment. "The enumeration in the
Constitution of certain rights, shall not be construed to deny or
disparage others retained by the people." Evidently Mr. Pilon
sees this as a source of rights. Raoul Berger, in his Government
by Judiciary points out that the Ninth Amendment merely says
that "...what is retained is excluded from the federal
jurisdiction...the great object in view is to limit and qualify the
power of government by excepting out of the grant of power
those cases in which the Government ought not to act." As
Justice Stewart said in his dissent of Griswold v. Connecticut,
"The Ninth Amendment...was framed by James Madison and
adopted by the States simply to make clear that the adoption of
the Bill of Rights did not alter the plan that the Federal
Government was to be a government of express and limited
powers, and that all rights and powers not delegated to it were
retained by the people and the individual states." While I agree
with the results of Troxel, I don't believe the Ninth Amendment
gives judges the right to decide who has visitation rights. The
people, through their state representatives, "retain" that right.
The Privileges and Immunities Clause also gives Mr. Pilon a
"font" of rights. In Article IV, Section 2, it says, "The citizens of
each state shall be entitled to all privileges and immunities of
citizens in the several states." What this Clause means runs the
gamut from Robert Bork ("...we do not know what the clause
was intended to mean") to Justice Samuel Miller in the Slaughter
House Cases, where he interpreted the Clause as referring to
rights already protected, to Justice Bushrod Washington and
Roger Pilon who interpret it as a source of unenumerated rights.
As usual the simplest, most common sense interpretation is
correct. In A.T. Southworth's The Common Sense of the
Constitution of the United States, he explains, "A person who
goes from one state to another...automatically acquires the
privileges of the state into which he goes." And the Fourteenth
Amendment, Section I, says, "No State shall make or enforce
any law which shall abridge the privileges or immunities of
citizens of the United States..." Clearly this means that any rights
as a United States citizen the newly freed slaves had, were not to
be curtailed by the states. The only reason I see the clause as
being a "font" of rights is to discover rights that protect an
agenda.
Finally, the property and contract laws that Mr. Pilon categorizes
as natural rights, are in the Constitution. Article I, Section 10
states, "No State shall...pass any...law impairing the obligation of
contracts." And property rights are protected by the Ninth
Amendment simply because it's an area that Congress is not
empowered to intrude. As far as the states go, the Fourteenth
Amendment says that no State shall "...deprive any person of life,
liberty, or property, without due process of law." If we have a
right to life and a right to not be incarcerated without due
process, then we have a right to property, and no state can take
it away without due process. So all these other natural rights,
whatever they are, (according to Bushrod Washington there are
so many it would be "tedious" to enumerate them) must be found
by Justices.
Granted, Mr. Pilon distinguishes natural rights from "welfare"
rights, such as: "rights to education, health care, subsidies, import
restraints, and the like," but when Justices define rights, there is
nothing to stop them from declaring that one-person, one-vote,
or privacy, or even education and health care are fundamental,
natural rights, that all civilized democracies should protect. This is
exactly what we've been getting from liberal Justices for 70
years. Scalia is right: those rights "retained" by the people should
be decided by the people. While I share Mr. Pilon's concern
over the nomination process, I see no solution in Mr. Pilon's
argument.
Robert S. Sargent, Jr. can be reached at rssjr@citcom.net.
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